March 31, 2010

Expectations of Privacy in a Technological Age

A recent article in the New York Times reported on the ways people frequently share rather private information through social networking sites such as Facebook, as well as when engaging in online commerce and other Internet activity. The article reported on how relatively easy it was for third parties to gather information from these sites in order to make future predictions about someone’s purchasing or movie rental habits, and in some cases third parties were able to predict much more personal information, such as someone’s social security number, based upon their online activity.

There is no question that new technologies and new uses for the Internet have important privacy implications. I am often struck by how willingly and perhaps unthinkingly people who have grown up in the Internet era are to put what I view as very private information online. For me this raises the question: in which activities do we have a reasonable expectation of privacy?

This focus on reasonable expectation of privacy of course comes from the Supreme Court’s opinion in Katz v. United States. In Katz and in subsequent cases the Court held that the protections of the 4th Amendment applied to conduct for which there was a subjective expectation of privacy which society is prepared to recognize as reasonable. The short-hand test is “reasonable expectation of privacy.” In the years after Katz, the Court has been asked on a few occasions to apply that test in the arena of advancing technologies. In Kyllo v. United States, the Court held that the police officers’ use of a thermo-imaging device to detect the amount of heat that was radiating from a home was a search under the Fourth Amendment, because those living in the home had a reasonable expectation of privacy in that information. On the question of advancing technology, the Court noted that, because the thermo-imaging device was not something that was readily available to the general public, there was still a reasonable expectation of privacy in the information detected by the device.

While many would agree that the outcomes in both Katz and Kyllo are protective of individual privacy rights, the practices which we as a society seem to be developing and following when it comes to Internet use have me wondering whether “reasonable expectation of privacy” is the right threshold test for Forth Amendment protection. If the protections of the Fourth Amendment are triggered in large part by our societal norms, then it seems that in much of our daily lives, whether it is engaging in online shopping or banking, or social networking, texting, talking on our smart phones, or driving, we have set a pretty low threshold for the types of information we expect to be private.

Perhaps it is time, given these social dynamics, to re-examine the reasonable expectation of privacy test, and also to re-examine exactly what core interests the Fourth Amendment was intended to protect. Was it to protect privacy, or is there something more or a different interest at stake? In this age of information collection and sharing that seems to occur seamlessly between governmental entities and the private sector, can the Fourth Amendment be used to draw meaningful distinctions between information held in the private sector and information to which the government has access? When people engage with the most modern technological tools, do they really understand and appreciate the privacy issues at stake? How does our experience in the post 9/11 world change our view, if at all, toward the role of government? Just what does it mean to have a reasonable expectation of privacy in the 21st Century? These are important questions to think about next time we pick up a smart phone or order a movie online or share pictures of our friends over a social networking site.